Opinion
No. 97 CR 516
October 15, 2001
MEMORANDUM OPINION AND ORDER
Defendants James and Janice Skrzypek have filed or adopted a number of motions, many of which have been overtaken by events. That is, this has been a totally open file case from the start, with the result that defendants have obtained considerably more discovery than this court could otherwise require.
1. The motion for immediate disclosure of favorable evidence and timely production of witness statements is denied as moot, all the requested material having been produced.
2. The motion for disclosure of expert testimony and facts or dates upon which expert testimony will be based is denied as moot. The government has made its one expert available to defendants and has made and will continue to make available drafts of the summary testimony and supporting documentation. Defendants have a reciprocal obligation to disclose their expert witness materials.
3. The motion for preservation of agents' notes is denied as moot, the government having agreed to preserve those notes.
4. The motion for timely production of Rule 404(B) material is denied as moot, the government having represented that it will provide notice of the limited 404(B) material it intends to introduce in its case in chief well before trial. Defendants are not entitled to disclosure of such evidence that may be used for cross examination or rebuttal, except that it should advise defendants' counsel and the court of its intent to do so at the time of trial, thus permitting any objections to be ruled upon prior to introduction.
5. The motion to compel the prosecution to retain and produce the original tapes and recording devices used to record the conversations of the defendants in this cause is, in part, denied as moot, as the government has largely acceded to defendants' requests. The only remaining issue is whether defendants should be permitted to conduct chemical tests on two original tapes. We adopt the government's suggestion that defendants' expert may conduct tests on the original tests so long as defendants agree that if the expert damages any tapes during testing such that the government cannot itself conduct follow-up tests, then a duplicate of the original shall be considered as the original and its authenticity cannot be called into question at trial.
6. The motion for early return of trial subpoenas is granted. It shall be applicable to both government and defendants, and any production shall be available to both.
7. The motion to sever is denied. We think the government has sufficiently demonstrated that the charges relate to an alleged common scheme, as more fully described in its October 12, 2001 consolidated responses. The number of counts and the length of the indictment are very substantial. We believe, however, that the alleged fact patterns and their interrelationships are such that their joint trial will be manageable and well within a jury's ability to follow the evidence, comprehend and decide.
8. The motion to dismiss counts 5, 73, 122, 123, 124 and 125 is denied for the reasons stated in the government's October 12, 2001 consolidated response.
9. The motion to dismiss the indictment is denied. True it is that it is an abuse of the grand jury process to use the grand jury to gather evidence for or further investigate causes that were previously indicted. But there is no indication of that here. The government has changed the wording of some counts without changing their substance and it has added counts aimed at conduct since the original indictment. Neither suggests any abuse of the process.
10. The motion to adopt co-defendants' motions is granted, and we have ruled upon them. The motion is otherwise moot as there are no other independent defendants actively participating in the case.
11. The motion for leave to file subsequent motions, filed September 30, 1999, is granted, and we have ruled upon all subsequent motions.
Finally, there apparently remains a pending motion to require the government to submit a Santiago proffer in advance of trial. We are uncertain of the status of that motion. If the government intends to introduce co-conspirator statements it should submit a written proffer well in advance of trial.